Comments on: Obergefell overturned?

By: Timothy Harris

Timothy Harris — Wed, 11 Jul 2018 02:55:47 +0000

I don’t expect the Supreme Court to hear a case that touches on Obergefell if they can possibly avoid it, and I don’t see a clear path for such a case making it to certiori. But Obergefell could be redone properly without dramatic legal difficulties. The ruling would just have to anticipate the problems & address them.
Of course the case they heard would have allow them to do so – but a hypothetical framework could be:

1) Marriage law is an issue for the States. States may stop issuing same sex marriage licenses if they wish.
2) However, the Full Faith & Credit clause requires States to recognize marriages performed in other States.
3) Marriages that were only allowed because of Obergefell were performed in a State where and when it was then legal and must continue to be recognized as such.

There would be dramatic political upset of course, but nobody would have their marriages annulled. There would then be a flurry of activity in many States to repeal the Statutory & Constitutional restrictions on same sex marriage. It’s possible that could fail in a State or two but same sex couples could just get married in a nearby State.

By: Steve

Steve — Mon, 09 Jul 2018 17:50:00 +0000

If it ever does revisit Obergefell (how do people pronounce that?), I’d like it if the court at least gave the holding some more coherent grounding. Kennedy should’ve handed that opinion off to someone else in the majority, it would’ve prevented the dissents from having such valid points about the terrible reasoning.

Anyway, Adler seems to summarize 3 or 4 points? Paywall leaves me wondering what the rest are.

By: SPO

SPO — Mon, 09 Jul 2018 11:56:15 +0000

To overturn Obergefell would be completely lawless. The case itself was wrongly decided–but it has vested millions with deeply personal and intimate rights. Undoing that would upset settled relationships and activities. There is a limit to the judicial power.